FCPA: What is a United States Person

From the perspective of assessing the FCPA‘s reach to a particular situation, attorneys, international attorneys, in-house counsel, accountants, consultants and others providing advice must understand that, under the FCPA’s anti-bribery provisions, no further proof is required to establish jurisdiction if an individual or entity is a United States person.[1]  For an individual or entity that is a United States person, it does not matter whether use of the mails or any means or instrumentality of interstate commerce is involved.[2]

For an individual to be a “United States person,” he or she must be a national of the Untied States as defined by Section 101 of the Immigration and Nationality Act.[3]  A national of the United States is either a citizen of the United States or a person who owes permanent allegiance to the United States or an entity organized under the laws of the United States, any state, territory, possession, or commonwealth of the United States, or any subdivision of any state, territory, possession, or commonwealth of the United States.[4]

[1]15 U.S.C. §§ 78dd-1(g), 02(i) (2012).

[2]Id., §§ 78dd-1(g)(1), -2(i)(1).

[3]Id., § 78dd-1(g)(2).

[4]8 U.S.C. § 1101(a)(22) (2012).  The second category of individuals who are not U.S. citizens and who owe allegiance to the United States is now “apparently limited to residents of American Samoa and Swains Island.”  Hashmi v. Mukasey, 533 F.3. 700, 704 n.1 (8th Cir. 2008) (citing Hampton v Mow Sun Wong, 426 U.S. 88, 90 n.1, 96 S. Ct. 1895, 48 L. Ed. 2d 495 (1976); Miller v. Albright, 523 U.S. 420, 467 n.2, 118 S. Ct. 1428, 140 L. Ed. 2d 575 (1998) (Ginsberg J., dissenting).

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